Citation Nr: 9814323
Decision Date: 05/07/98 Archive Date: 05/20/98
DOCKET NO. 96-50 356 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an increased disability rating for pes planus
with a history of weak foot and degenerative changes of the
right ankle, currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michelle L. Nelsen, Associate Counsel
INTRODUCTION
The veteran had active duty from August 1941 to March 1945,
and from June 1945 to October 1945.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a September 1996 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that the RO erred in failing to award a
disability rating greater than 20 percent for a right foot
disorder. He specifically argues that he is entitled to a
higher rating because he suffers from constant, severe pain
in the foot. Therefore, a favorable disposition is
requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the evidence is against a
rating in excess of 20 percent disability rating for pes
planus with a history of weak foot and degenerative changes
of the right ankle.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
the equitable disposition of the veteran’s appeal.
2. The veteran’s right foot disability is manifested by:
constant pain exacerbated with use, which significantly
restricts the veteran’s ability to ambulate for more than
short distances; some swelling with use; pes planus; marked
limitation of motion of the ankle; and plantar tenderness.
3. There is no evidence of calluses, spasm of the Achilles’
tendon, or significant foot or toe deformities.
CONCLUSION OF LAW
The criteria for a rating in excess of 20 percent disability
rating for pes planus with a history of weak foot and
degenerative changes of the right ankle have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102,
4.1-4.7, 4.20, 4.21, 4.71a, Diagnostic Code 5284 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Where a disability has already been service connected and
there is a claim for an increased rating, a mere allegation
that the disability has become more severe is sufficient to
establish a well-grounded claim. See Caffrey v. Brown, 6
Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App
629, 632 (1992). Accordingly, the Board finds that the
veteran’s claim for an increased rating is “well-grounded.”
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1997).
The Board is also satisfied that all relevant facts have been
properly and sufficiently developed to address the issue at
hand.
Factual Background
The veteran was originally service connected in a June 1946
rating decision for a right foot disorder characterized as
weak foot. A 10 percent disability rating was assigned at
that time. In a March 1994 rating decision, the RO
recharacterized the disability as pes planus with a history
of weak foot and degenerative changes of the right ankle and
assigned a 20 percent disability rating.
The veteran submitted a claim for an increased rating in
December 1995. He underwent a VA examination in March 1996.
The veteran related having increasing foot pain over the last
year, with burning and fatigue when he walked. He could not
walk more than 75 to 100 feet without pain. Once the pain
started, he had to rest a few minutes before being able to
continue walking. The examiner noted that the veteran had
severe atherosclerotic coronary artery disease. It was noted
that surgery could increase circulation to the feet but the
veteran was not a surgical candidate. Physical examination
revealed that the veteran walked slowly and deliberately.
Step off with the feet was normal. The skin over the feet
and ankles was hairless, thin, and atrophic. Pedal pulses
were not palpable. Capillary refill was slowed. The feet
were cold. The examiner’s diagnosis was severe
atherosclerotic vascular disease with secondary claudication
of the feet with subjective symptoms increasing over the last
year.
The veteran was afforded another VA examination in September
1996. Over the previous three months, the veteran had more
intense pain which limited his ability to walk more than 50
or 75 yards. He described the right foot pain as sharp and
intense without radiation. The examiner noted the veteran’s
history of claudication. However, the veteran indicated that
he could not walk far enough for the claudication to bother
him because of the intense pain in the right foot. On
examination, the veteran’s gait was normal. The ankle joint
was stable. Range of motion of the right ankle was 0 degrees
dorsiflexion and 70 degrees plantar flexion. There was no
pain on movement during testing. There was minimal
tenderness of the right ankle joint anteriorly and no
palpable tenderness throughout the foot. Pedal pulses were
not palpable. The examiner indicated that X-rays showed mild
degenerative changes in the feet. He surmised that these
changes were causing the intense pain. The diagnosis was
mild degenerative changes in the feet.
The veteran underwent another VA examination in May 1997.
The veteran reported a long history of pain in the right
medial foot and ankle. The pain was a constant dull ache
worsened by weight-bearing. Rest and non-weight bearing
improved the pain within 10 minutes. Arch supports and
special tennis shoes did not help. He had occasional
swelling which resolved with elevation of the foot. The
veteran denied any stiffness. On examination, ankle strength
was normal and sensation was intact. There was significant
plantar fascia tenderness with dorsiflexion and when
squatting. The veteran’s gait was antalgic with small steps
but functional. There were no significant foot deformities.
The examiner noted that presence of mild to moderate
pronation, worse on the right, and mild ankle valgus, both of
which were correctable. There were no calluses. Pedal pulse
was not palpable. Range of motion of the right ankle was 5
degrees dorsiflexion and 30 degrees plantar flexion. X-rays
of the ankle were unchanged from previous films. The
diagnosis was tenderness consistent with plantar fasciitis,
decreased range of motion of the ankle joint, and pes planus.
The veteran testified at a personal hearing in December 1997.
He indicated that the foot pain was constant but worsened
with weight on the foot. Pain was at the arch and in the
ankle. He did not wear arch supports or special shoes. The
veteran went to VA facilities for examinations only and did
not have a private physician for his foot problems. He had
some swelling with use of the foot which resolved when the
weight was off the foot. He did not take anti-inflammatory
medication. On a scale of one to ten, pain was a five or six
when walking and a one or a two when sitting. His feet got
cold very easily. Any sort of pressure on the foot caused
pain. The veteran did not use a cane or walker. He could
walk about 100 yards before the pain became unbearable. He
carried a folding chair with him so he could rest. The
veteran did not notice problems with the Achilles’ tendon or
calluses on the feet. Right ankle symptoms included pain,
swelling, and laxity. There was no deformity of the toes and
no problems with toenails. The veteran never used a brace or
wrap for the ankle.
Analysis
Disability ratings are determined by applying the criteria
set forth in the VA’s Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Where an increase in an existing disability rating based on
established entitlement to compensation is at issue, the
present level of disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two
evaluations are potentially applicable, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, whether or not they were
raised by the veteran, as well as the entire history of the
veteran’s disability in reaching its decision. Schafrath v.
Derwinski, 1 Vet. App. 589, 595 (1991).
The veteran’s disability is presently characterized as pes
planus with a history of weak foot and degenerative changes
of the right ankle. When a particular disability is not
listed in the Schedule, it will be rated under an analogous
disease or injury, considering factors including functions
affected, symptomatology, and anatomical location. 38 C.F.R.
§ 4.20; see 38 C.F.R. § 4.27 (providing specific means of
listing diagnostic code for unlisted disease or injury).
The veteran’s right foot disability is currently rated as 20
percent disabling under Diagnostic Code (Code) 5276, acquired
flatfoot. 38 C.F.R. § 4.71a. A 20 percent rating is
assigned when there is unilateral disability which is severe,
with objective evidence of marked deformity (pronation,
abduction, etc.), pain accentuated on manipulation and use,
indication of swelling on use, and characteristic
callosities. The maximum available rating for a unilateral
disability under Code 5276 is 30 percent, which is
appropriate when the disability is pronounced, with marked
pronation, extreme tenderness of plantar surfaces of the
feet, marked inward displacement and severe spasm of the
tendo achillis on manipulation, not improved by orthopedic
shoes or appliances.
There are other diagnostic codes applicable to foot
disabilities which provide for a disability rating greater
than 20 percent. The Board notes that Diagnostic Code 5278,
acquired pes cavus, and Code 5283, malunion or nonunion of
the tarsal or metatarsal bones, are factually inapplicable in
this case, as there is no evidence of pes cavus or tarsal or
metatarsal bone deformity. Under Code 5284, other foot
injuries, a 20 percent rating is assigned for moderately
severe disability; a 30 percent rating is warranted for
severe disability. Actual loss of use of the foot is rated
as 40 percent disabling.
Because the veteran’s right foot disability includes a
component of ankle symptoms, the Board must also consider the
potential application of diagnostic codes pertaining to the
ankle. Only Code 5270, ankylosis of the ankle, provides for
a disability rating greater than 20 percent. However, VA
examinations are negative for any ankylosis of the ankle.
Therefore, Code 5270 is factually inapplicable.
38 C.F.R. § 4.71a, Diagnostic Code 5271 is for application
where limitation of motion of the ankle is demonstrated.
Where limitation of motion is marked, a 20 percent rating is
assigned. Where limitation of motion is moderate, a 10
percent rating is for assignment.
Thus, in evaluating the veteran’s right foot disability for a
rating greater than 20 percent, the diagnostic code options
are Code 5276, pes planus, or Code 5284, other foot injuries.
Considering the evidence of record, the Board finds that both
diagnostic codes are satisfactorily analogous to the
veteran’s right foot disability. Accordingly, the Board will
assign the Code under which the more favorable rating may be
had.
According to the evidence of record, the current symptoms of
the veteran’s right foot disability include constant pain
exacerbated with use, some swelling with use, pes planus,
decreased range of motion of the ankle, and plantar
tenderness. The pain significantly restricts the veteran’s
ability to walk more than 100 yards. There is no evidence of
calluses, problems with the Achilles’ tendon, or significant
foot or toe deformities.
Considering Code 5276, the Board finds that the right foot
disability picture does not more nearly approximate the
criteria for a 30 percent rating. 38 C.F.R. § 4.7. The pes
planus is not described as severe in the record. Moreover,
the evidence is negative for significant right foot
deformities or spasm of the Achilles’ tendon. Thus, the
preponderance of the evidence is against a 30 percent rating
under Code 5276.
Code 5284 provides for a 30 percent rating for severe
disability resulting from other foot injuries. The Board
notes that service medical records show the original injury
consisted of a sprained ankle, followed by complaints of
right arch pain diagnosed as foot strain. Taking into
consideration the current symptomatology described above,
specifically including pain, pain on use, and the effect of
that pain on the veteran’s ability to ambulate, the Board
finds that the evidence does not support a 30 percent rating
for pes planus with a history of weak foot and degenerative
changes of the right ankle, even considering Code 5284. The
examiner described deformity of the foot as no more than mild
to moderate. Even taking into account painful motion of the
ankle, no more than moderately severe impairment has been
shown. Notably, no complaints of pain were elicited on
plantar flexion or on dorsiflexion of the ankle in September
1997, although some pain was noted in eversion and inversion.
38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.71a,
Code 5284. See generally DeLuca v. Brown, 8 Vet. App. 202,
206 (1995) (ratings based on limitation of motion should, if
feasible, be portrayed in terms of additional limitation of
motion due to pain on motion or weakness pursuant to
38 C.F.R. §§ 4.40 and 4.45); Johnson v. Brown, 9 Vet. App. 7
(1996) (Board need not assign a separate rating for
functional loss due to pain or weakness when the diagnostic
code is not predicated on range of motion); Spurgeon v.
Brown, 10 Vet. App. 194 (1997) (even if a separate rating for
pain is not required, the Board is still obligated to provide
reasons and bases regarding application of the regulation).
The Board finds that the evidence does not show and the
veteran does not suggest that his disability presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards. 38 C.F.R.
§ 3.321(b)(1).
ORDER
Entitlement to a rating in excess of 20 percent disability
rating for pes planus with a history of weak foot and
degenerative changes of the right ankle is denied.
RENÉE M. PELLETIER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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